Wednesday, September 12, 2012

Ontario Bill 115 versus Charter s.2(d): Can the government force terms on teachers?

For those of you who haven't been paying attention, there's big news in Ontario's education system.

Teachers' collective agreements have been up for negotiation.  The Ontario government managed to broker a deal with OECTA - my understanding is that OECTA didn't put up too much of a fight, but insisted on including a "me too" clause, that if the government agreed to more favourable terms for other teachers, OECTA would get the benefit of those terms as well - but played hardball with those who wouldn't meet their terms.  For several weeks, they threatened to enact legislation which would override any collective agreements and freeze teachers' salaries.

And now they've gone and done exactly that.

It's problematic legislation, from a constitutional perspective.  The government is using its legislative powers to dictate terms of what would ordinarily be contractual in nature - some of the media reports refer to it as "imposing a new contract", but in my view that's an improper characterization.  A contract is, by definition, something to which its parties have agreed.

The government insists that it gave the unions an opportunity to bargain, but the unions either walked away from the table or failed to reach collective agreements.

Even to whatever extent that characterization might be fair, it creates a bit of a false choice:  Choose to agree to the pay freeze, or choose not to agree to it, and have it imposed upon you anyways.

The Supreme Court of Canada:  B.C. Health Services and Fraser

The reason it's really problematic is the B.C. Health Services case from the Supreme Court.  The British Columbia government did something very similar at the start of 2002, legislating over the collective agreements in its health sector.  More than five years later, the Supreme Court decided the issue, finding that there is a constitutional right to good faith collective bargaining.

So...pretty much fatal to the Province's position, no?

Well, probably.  Maybe.  If...

You see, the law isn't a static thing.  Reading the B.C. Health Services decision, one would easily conclude that Bill 115 is unconstitutional, violating s.2(d) of the Charter of Rights and Freedoms.

But then we come to last year's decision in the Fraser case - my commentary here - dealing with a statute which required an employer to receive and respond to employee association proposals.  In four sets of reasons, 8 of 9 judges concluded that this was constitutional, but the reasons varied.  The majority concluded that a good faith obligation could be (and should be) read into the language, and that was sufficient.  No particular bargaining process is guaranteed by s.2(d).

But Justice Deschamps argued for a narrow interpretation of B.C. Health Services, and Justices Rothstein and Charron argued that B.C. Health Services was unworkable and the precedent should be overturned.   The majority's response to the latter is that it was "premature" to conclude that the decision was unworkable.

In other words, B.C. Health Services is not perpetually bulletproof.

The Ontario Court of Appeal:  Mounted Police Association of Ontario and Association of Justice Counsel

Then we come to the last few months in Ontario, with two major decisions from the Ontario Court of Appeal.  First, we have the Mounted Police Association of Ontario case - my commentary here - where the Mounties sought the right to unionize.  The Court of Appeal elaborated on the Supreme Court's decision in Fraser dealing with 'derivative rights', that the right to collective bargaining is guaranteed only as a derivative of the right to meaningful association, and is therefore limited in scope.  The employer had a model in place that allowed a collective of employees to make representations, which were heard and responded to in good faith, and that was enough.

Then, last month, the Ontario Court of Appeal released its decision in the Association of Justice Counsel case, dealing with a federal law which prohibited salary increases above a certain level for government lawyers, among others.  The Court of Appeal looked at the process, and concluded that there had been good faith collective bargaining, notwithstanding that an agreement was not concluded and ultimately the main issues in contention were disposed of by legislation.

It was around the time this decision was released that the Ontario Liberals started threatening to impose terms.  Not likely a coincidence; they're relying on this decision to justify their actions.

Still, we don't know what, if anything, the Supreme Court will do with the MPAO and AJC cases, and Bill 115 would take this doctrine to the next level.  The MPAO case, I believe, was probably rightly decided, in light of Fraser.  But it seems to me that the AJC case is more difficult:  It hinges on the notion that it is only necessary that some good faith bargaining occur, and that once there has been some good faith bargaining, all bets are off.

I find that hard to rationalize.  You have a right to be heard and considered in good faith...and if their good faith evaluation doesn't lead them to accept your proposal, they can squish you like a bug.  It rather undermines the necessity of good faith in the first place, if these negotiations all take place under the spectre of legislative intervention.  If you and I go into negotiations knowing that, if the negotiations break down, you'll get everything you want...who holds all the cards?  What incentive do you have to make concessions?  It makes little sense.

Fraser guaranteed a process that involved the employers listening to and considering employee representations in good faith.  In the absence of good faith, there was a statutory mechanism to seek recourse, the effectiveness of which is essentially untested.  There is no obligation on the employer to act on the employee representations, but it seems unlikely to me that the Supreme Court's interpretation of the statute actually permits them to completely disregard the representations after making their response.

So imagine the employee association makes a proposal for additional breaks.  The employer looks at the proposal, costs it out, determines that it isn't viable at this time, and tells the association so.  Then, the following week, a more spiteful manager comes back from vacation, sees the proposal and decides to reduce break times as a retaliation for the employees having the gall to ask for more.  Under the AJC analysis, this is fine - the employer met its constitutional obligation, and now good faith goes out the window.

No, I don't think Fraser cut off the employer's obligations there.  It seems to me that good faith bargaining, by definition, means that - even if the employer is able to unilaterally impose terms - the decision-making processes leading to significantly changed terms and conditions of employment must include consideration of employee representations.

Perhaps more importantly, the AJC case deals with cases with fixed limits for compensation increases.  It creates a framework within which negotiations can still occur.  It may be a fact-based question as to whether or not it renders the collective bargaining process meaningless - it seems that one of the AJC's priorities was to close a salary gap between federal and provincial lawyers, and this clearly made that goal impossible.

In a case like Bill 115, though, the government is essentially replacing the need for a collective agreement.  It's setting the terms.  While I think the AJC decision is vulnerable at the Supreme Court, Bill 115 is even more vulnerable.

Additional Thoughts

I dislike such heavy-handed labour policy as what we are seeing now from the Provincial government, and what we've been seeing from the Federal government for a while.  The trouble is that I actually agree with Justices Rothstein and Charron:  B.C. Health Services has some deep problems.  Yet heavy-handed union-busting policy choices are more likely to attract negative attention from the Courts - if the government is acting in such a way, the Courts may feel more obligated to step in to protect against such tactics.  The precedent in B.C. Health Services is less likely to be done away with when governments continue to demonstrate good reasons that it should be maintained.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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